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EXHIBIT 10.41
[EXECUTION COPY]
AGREEMENT OF PURCHASE AND SALE
By and Between
ALTERRA HEALTHCARE CORPORATION
a Delaware corporation, as "Purchaser"
and
MEDITRUST ACQUISITION COMPANY LLC,
a Delaware limited liability company,
NEW MEDITRUST COMPANY LLC,
a Delaware limited liability company,
and
T and F PROPERTIES, LP,
a Delaware limited partnership,
collectively as "Seller"
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AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (this "Agreement") is made and
entered into effective as of the 30th day of November, 1999, by and between
MEDITRUST ACQUISITION COMPANY LLC, a Delaware limited liability company, NEW
MEDITRUST COMPANY LLC, a Delaware limited liability company, and T AND F
PROPERTIES, LP, a Delaware limited partnership (hereinafter collectively
referred to as "Seller"), and ALTERRA HEALTHCARE CORPORATION, a Delaware
corporation (hereinafter referred to as "Purchaser").
W I T N E S S E T H:
WHEREAS, one (1) of entities comprising Seller owns one (1) or more of
the nineteen (19) assisted living and dementia care facilities being more
particularly identified on Exhibit A, attached hereto and incorporated herein by
reference (collectively, and as more particularly described in Paragraph 1
hereof, the "Facilities," as such term is more particularly defined below);
WHEREAS, ALS Leasing, Inc., a Delaware corporation, and Assisted Living
Properties, Inc., a Kansas corporation (collectively, the "Alterra Lessees") are
the tenants in possession of the Facilities pursuant to certain Facility Lease
Agreements executed and entered into between one (1) of the entities comprising
Seller (or its predecessor) and one (1) of the Alterra Lessees, such Facility
Lease Agreements being more particularly described on Exhibit B attached hereto
and incorporated herein by reference (collectively, the "Existing Leases"); and
WHEREAS, Seller desires to sell, and Purchaser desires to purchase,
each of the Facilities, upon and in accordance with the terms and conditions
hereinafter set.
NOW, THEREFORE, for and in consideration of the foregoing, the sum of
Ten Dollars ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Purchaser and Seller hereby agree
as follows:
1. PURCHASE AND SALE OF FACILITIES.
Upon and subject to the terms and conditions set forth in this
Agreement, Purchaser shall purchase from Seller, and Seller shall sell to
Purchaser, the following described property:
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A. Real Property. Fee simple title in and to all those tracts or
parcels of land described on Exhibit C attached hereto and made a part hereof
(the "Land"), including, without limitation, (a) any and all buildings or
structures located on the Land and all other Improvements (as hereinafter
defined), (b) all easements appurtenant to the Land and other licenses, grants
of right, privileges or other agreements appurtenant to the Land or for the
benefit of or belonging to the Land regardless of whether situate upon the Land,
and regardless of whether specifically referenced on Exhibit C attached hereto,
(c) all mineral, oil and gas rights, riparian rights, water rights, sewer rights
and other utility rights of Seller as the owner of the Land, if any, (d) all
right, title and interest, if any, of Seller as the owner of the Land in and to
any and all xxxxxx, strips and gores of land located on or adjacent to the Land,
(e) all right, title and interest of Seller as the owner of the Land in and to
any roads, streets and ways, public or private, open or proposed, in front of or
adjoining all or any part of the Land and serving the Land, and (f) all rights
of Seller, if any, as the owner of the Land to development of the Land
appurtenant to the Land and granted by governmental entities having jurisdiction
over the Land (the Land and all of the foregoing interests are sometimes
hereinafter collectively referred to as the "Real Property").
B. Residency Agreements. The interest of Seller, if any, in and to all
residency agreements, entrance agreements and other agreements for use or
occupancy of all or any portion of each of the Facilities entered into by all
residents currently occupying beds or units in the Facilities (hereinafter
collectively referred to as "Residents") (collectively, the "Residency
Agreements").
C. Leases. The interest of Seller, as lessor under the Existing Leases,
together with all rights appurtenant thereto including without limitation any
letters of credit or cash collateral posted as security for the Existing Leases
(which are hereinafter collectively called the "Deposits"). The name of each
current lessor (together with any original lessor entities) and each lessee
under the Leases for each Facility, the date of each Lease, and the Deposits
therefor, are set forth on Exhibit B.
D. Improvements. All buildings, structures (surface and subsurface) and
other improvements and fixtures situated on or attached to or constituting a
portion of all or any portion of the Real Property (herein collectively referred
to as the "Improvements").
E. Personal Property. The interest of Seller, if any, in and to all
personal property located at the Facilities and used or useable in connection
with any present or future occupation, operation or maintenance of all or any
part of the Real Property or the Improvements or both, together with (to the
extent not constituting a portion of the Real Property or the Improvements) all
fixtures, trade fixtures, furniture, furnishings, carpeting, draperies, linens,
fittings, equipment, machinery, apparatus and appliances, now located on the
Real Property or the Improvements or both and used or useable in connection with
any present or future occupation or operation of all or any part of the Real
Property or the Improvements or both, including, without limitation, all
elevators, escalators, boilers, furnaces, heating, ventilating and
air-conditioning systems, furnishings and equipment,
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building drawings, plans and specifications, building materials and wall
partitions, sprinkler and well systems, sewerage systems, electrical equipment,
fire prevention and extinguishing apparatus, engineering, maintenance, cooking,
housekeeping and medical or therapeutical supplies and materials, mowers and
edgers and other lawn maintenance equipment and supplies, vans, buses,
automobiles or other motor vehicles, fuel and other supplies of all kinds
whether used, unused or in stock for future use in connection with the
occupation, maintenance or operation of the Facilities, which are on hand on the
date hereof, subject to such depletion and including such resupplying as shall
occur and which the Alterra Lessees are obligated to make pursuant to the
Facility Leases in the ordinary course of operating the ongoing business at the
Facilities (the aforesaid items are hereinafter collectively referred to as the
"Personal Property").
F. Service Contracts. The interest of Seller, if any, in and to any
service, supply, development, construction, management, maintenance or other
contracts for leasing, management, maintenance or operation of the Facilities
(other than the Existing Leases), including, but not limited to, all leases by
which equipment is leased and is located at the Facilities and used in
connection with the occupation, operation or maintenance of the Facilities, and
all operating files relating to all of the aforesaid (herein collectively
referred to as the "Service Contracts"). A summary list of all Service Contracts
in effect as of the date of this Agreement to which Seller is a party but to
which the Alterra Lessees are not a party is attached hereto as Exhibit D and
made a part hereof (the "List of Service Contracts").
G. Operating Interests. Any other interest, if any, of Seller, in and
to the Real Property and the Improvements or pertaining thereto (hereinafter
collectively referred to as the "Operating Interests"), including, without
limitation, any and all of the following:
(i) The interest, if any, of Seller conducted at the Facilities
as a going concern, including without limitation, any name or trade
name by which the Improvements or the Facilities or any part thereof
may be known (expressly excluding, however the name "Meditrust", the
names of Seller and any affiliates of Seller and all derivations
thereof) including, but not limited to names, if any, used on the date
hereof in connection with the ownership and operation of the
Facilities, and all registrations for such names, if any, and all
intangible rights or interests associated with the Facility, including
without limitation goodwill and going concern value, the registrations
therefor and any and all marketing materials, promotional materials,
letterhead, envelopes or other materials bearing such names and logos,
if any;
(ii) To the extent assignable or transferable, the interest of
Seller, if any, in each and every bond, guaranty and warranty
concerning the Improvements and the Personal Property, including,
without limitation, any roofing, air conditioning, heating, elevator
or other bond, guaranty and warranty relating to the construction,
maintenance or replacement of the Improvements or any portion thereof;
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(iii) The interest of Seller, if any, in and to all licenses,
permits, accreditations, approvals and certificates used in or
relating to the ownership, occupancy or operation of any part of the
Facilities, to the extent and only to the extent the same can be
assigned or transferred in accordance with applicable law (hereinafter
collectively referred to as the "Permits"), including, without
limitation, (a) any permit, license, accreditation or other approval
necessary under applicable federal, state or local law in order to
permit the operation of the Facilities as the type of Facility, and
for the number of Residents, set forth with respect to each such
Facility on Exhibit A and (b) any provider agreements with
Medicaid, Medicare and any other third-party payor programs entered
into with respect to the Facilities and any other requirement of any
federal, state or local governmental agency or organization to qualify
for payment or reimbursement for medical or therapeutic care or other
goods or services rendered or supplied to any Resident; and
(iv) Any appurtenant and reciprocal easements or other
instruments affecting the Real Property, including all amendments and
modifications and Seller's operating files, if any, relating thereto.
The Real Property, the Improvements, the Residency Agreements, the Existing
Leases, the Service Contracts, the Personal Property and the Operating Interests
related to and associated with a specific Facility are herein collectively
referred to as the "Facility."
2. PURCHASE PRICE FOR THE FACILITIES; XXXXXXX MONEY.
A. Payment. Subject to adjustments as may be applicable pursuant to
Paragraph 5 hereof, the purchase price for each Facility shall be as set forth
on Exhibit E attached hereto and made a part hereof (each, the "Facility
Purchase Price"). The Facility Purchase Price for a Facility shall be payable to
Seller on the Facility Closing Date for such Facility in accordance with
Paragraph 3 hereof, subject to the prorations and adjustments set forth herein,
by wire transfer through the federal reserve system in immediately available
funds to an account designated by Seller in advance. At each such Facility
Closing, Seller hereby authorizes Purchaser to wire transfer such portion of the
Facility Purchase Price as is necessary to satisfy any and all existing Monetary
Encumbrances (as hereinafter defined) with respect to such Facility, all of
which shall be paid and satisfied at such Facility Closing, including without
limitation, the amount of the outstanding principal, accrued but unpaid
outstanding interest, all prepayment penalties and all other sums owed or
claimed in order to cause the holder of any Monetary Encumbrance secured by such
Facility to release and satisfy all amounts due with respect thereto as of the
Facility Closing Date directly to the holder of such Monetary Encumbrances.
B. Allocation. Purchaser and Seller hereby agree that for purposes of
reporting this transaction to the Internal Revenue Service the Facility Purchase
Prices for each Facility shall be allocated entirely to the Real Property, and
the Improvements, and no portion of the Facility Purchase Prices will be
allocated to the Personal Property or the Operating Interests.
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X. Xxxxxxx Money Deposit with Escrow Agent. Within ten (10) days after
the date of this Agreement, Purchaser shall deposit into escrow the sum of Fifty
Thousand and No/100 Dollars ($50,000.00) as xxxxxxx money (which sum, together
with all interest actually earned thereon, is hereinafter referred to
collectively as the "Xxxxxxx Money") with an agent of Chicago Title Insurance
Company at their national office in Atlanta, Georgia ("Escrow Agent"). The
address, phone number and facsimile number for Escrow Agent is set forth in
Paragraph 14 hereof. The Xxxxxxx Money shall be held and disbursed by Escrow
Agent in accordance with the terms of this Agreement and shall be invested by
Escrow Agent in an interest bearing account (and all such interest shall
constitute part of the Xxxxxxx Money) that is fully insured by the Federal
Deposit Insurance Corporation. Except as otherwise provided in this Agreement,
the Xxxxxxx Money applicable to each Facility, which amount is set forth on
Exhibit E, shall be paid to Seller at the respective Facility Closing and
Purchaser shall receive a credit against the Facility Purchase Price in the
amount thereof. In all instances where Purchaser is entitled to terminate this
Agreement and receive a refund of the Xxxxxxx Money, Escrow Agent's receipt of a
copy of Purchaser's termination notice to Seller shall constitute full
authorization for Escrow Agent to release the Xxxxxxx Money to Purchaser unless
Seller gives written objection to such disbursement in writing to Purchaser and
Title Company within three (3) Business Days of receipt of such termination
notice. In all other instances (other than Closing), Escrow Agent must receive
the joint written instructions of Purchaser and Seller for authorization to act
hereunder.
X. Xxxxxxx Money Disputes. In the event of any dispute arising under
this Agreement with respect to disposition of the Xxxxxxx Money or the
entitlement of any party to the Xxxxxxx Money, Escrow Agent shall not be
required to determine the resolution of any such dispute and Escrow Agent shall
not be obligated to make any delivery of the Xxxxxxx Money, but in such event,
Escrow Agent may hold the Xxxxxxx Money until receipt by Escrow Agent of an
authorization in writing signed by both Seller and Purchaser directing the
disposition of same. In the absence of such authorization, Escrow Agent may hold
the Xxxxxxx Money until the final determination of the rights of the parties in
an appropriate proceeding. If such written authorization is not given, or if
proceedings for such determination are not commenced and diligently continued to
a resolution of such dispute, Escrow Agent may, but is not required to, bring an
appropriate action or proceeding for leave to deposit the Xxxxxxx Money in any
court of competent jurisdiction in the state of Georgia, as Escrow Agent shall
elect, pending such determination and to submit resolution of such dispute to a
court of competent jurisdiction by action of interpleader. Escrow Agent shall
not be responsible for any acts or omissions unless same constitute willful
misconduct or negligence, and upon delivery of the Xxxxxxx Money in accordance
with the terms of this Agreement, Escrow Agent shall have no further obligations
or liabilities to the parties hereunder or in connection herewith in Escrow
Agent's capacity as escrow agent, except for any obligations or liabilities
arising from Escrow Agent's negligence or willful misconduct. In the event
Escrow Agent places the Xxxxxxx Money in the registry of a court as aforesaid,
and files an action of interpleader, Escrow Agent shall be released and relieved
from any and all further obligations and liabilities to the parties hereunder or
in connection herewith in Escrow Agent's capacity as escrow agent, except for
any obligations or liabilities arising from Escrow Agent's negligence or willful
misconduct.
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3. CLOSING.
The closing or settlement of the purchase and sale of each of the
Facilities contemplated by this Agreement shall be held in accordance with the
provisions of this Paragraph 3. The parties hereby acknowledge that, to
facilitate an orderly transfer of the Facilities from Seller to Purchaser in
light of the financing and governmental approval contingencies as hereinafter
set forth, it may be desirable to schedule multiple closings whereby closings
will be held with respect to one (1) or more (but less than all) of the
Facilities during the period commencing after the date of this Agreement and
ending January 30, 2000. Each closing for such Facility shall be held at the
offices of Xxxxxx & Xxxxxx LLP, 2700 International Tower, 000 Xxxxxxxxx Xx.,
X.X., Xxxxxxx, Xxxxxxx 00000 or such other location as Purchaser shall specify
upon not less than five (5) days advance notice to Seller. Each closing of one
(1) or more Facilities contemplated hereby shall be referred to herein as a
"Facility Closing" and the date of any such Facility Closing shall be referred
to herein as the "Facility Closing Date." Notwithstanding anything contained
herein to the contrary, and provided in all respects that there is complete
satisfaction of the conditions precedent contained in Paragraph 12 hereof,
Purchaser shall be obligated to consummate the Facility Closings for Facilities
having aggregate Facility Purchase Prices of at least Thirty Million and No/100
Dollars ($30,000,000.00) on or before December 30, 1999 (the "Tranche A
Closing"), with the Facility Closings for the remaining Facilities to be
consummated on or before January 30, 0000 (xxx "Xxxxxxx X Closing"). Purchaser
shall deliver notice to Seller on or before December 22, 1999 tentatively
identifying the Facilities to be closed on or before December 30, 1999 (the
"Tranche A Facilities") (subject to complete satisfaction of the conditions set
forth in Paragraph 12) and provided that the Tranche A Closing actually occurs,
the remaining Facilities shall be closed (subject to the complete satisfaction
of the conditions set forth in Paragraph 12) on or before January 30, 2000 (the
"Tranche B Facilities"). Identification of Facilities as Tranche A Facilities
and Tranche B Facilities shall represent Purchaser's reasonable commercial
judgment of those Facilities that Purchaser reasonably believes are capable of
satisfaction of all conditions to closing on December 30, 1999 without prejudice
to the right of Purchaser at any time prior to December 30, 1999 to (i)
substitute Tranche B Facilities for Tranche A Facilities if Purchaser in
Purchaser's reasonable commercial judgment determines such substitution is more
likely to result in the Facility Closing for such Facility on December 30, 1999
or (ii) thereafter elect to redesignate any such Tranche A Facility as a Tranche
B Facility. Notwithstanding anything to the contrary contained herein, Seller
shall have no obligation to sell any additional Facilities to Purchaser pursuant
to the terms of this Agreement if Purchaser fails to consummate the purchase of
Facilities having aggregate Facility Purchase Prices of at least Thirty Million
and No/100 Dollars ($30,000,000.00), on or before December 30, 1999 for any
reason (including without limitation the nonfulfillment of any condition in
Paragraph 12 hereof) other than Seller's default hereunder.
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A. Delivery; Possession. At the Facility Closing for any Facility,
Seller shall deliver to Purchaser the items required of Seller as elsewhere set
forth herein and Purchaser shall deliver to Seller the Facility Purchase Price,
subject to the prorations and adjustments as provided in Paragraph 5, and the
items required of Purchaser as elsewhere set forth herein. Seller shall deliver
possession of the applicable Facility to Purchaser at the time of such Facility
Closing subject only to the applicable Permitted Title Exceptions (as
hereinafter defined).
B. Transfer Taxes. Purchaser shall pay any and all city, county or
state conveyance or transfer taxes, state stamp or documentary taxes and surtax
stamps due upon the transfer of any Facility or the deed evidencing same
(including recording costs).
C. Seller's Closing Costs. Seller shall pay the costs (including
recording costs) of any cure of title defects required of Seller hereunder and
the fees and expenses of Seller's own attorneys.
D. Purchaser's Closing Costs. Purchaser shall pay the cost of the title
examinations, the premium for the Title Policies (as hereinafter defined), the
costs of any surveys of the Real Property obtained by Purchaser, the costs of
any other investigations, studies and appraisals conducted by Purchaser, and the
fees and expenses of Purchaser's own attorneys.
E. Other Costs. All other closing costs shall be paid by the party
incurring same.
4. TITLE.
At each Facility Closing, Seller shall convey and transfer to Purchaser
title to the applicable Facility which shall be free and clear of, and shall not
be subject to any of the following matters arising by, through or under Seller
(but not arising by, through or under the Alterra Lessees, which shall be deemed
to be Permitted Title Exceptions hereunder): any mechanics', materialmen's or
similar liens, pledges, mortgages, deeds of trust, security deeds, security
agreements, liens, judgments, conditional sales contracts, UCC's, encumbrances,
ground rents, past due taxes or assessments (other than those that the Alterra
Lessees are responsible for under the Existing Leases), fines, levies or other
encumbrances of a monetary nature or capable of being released upon payment of a
specified amount (herein collectively referred to as "Monetary Encumbrances") or
leases, tenancies, parties in possession, covenants, conditions, restrictions,
right-of-ways, easements, encroachments or any other agreements, contracts,
rights, acts or other matters of any nature affecting the title thereto, except
for the Permitted Title Exceptions or arising by, through or under the Alterra
Lessees. Purchaser shall at its option obtain through Chicago Title Insurance
Company ("Title Company") an owner's policy of title insurance (the "Title
Policy").
A. Examination of Title. Purchaser shall have until (i) December 28,
1999 with respect to the Tranche A Facilities and (ii) January 21, 2000 with
respect to the Tranche B Facilities to examine title to each of the Facilities
and to obtain Surveys (as hereinafter
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defined) and to notify Seller in writing of any defects in title which may be
revealed by Purchaser's examination (which defects may include any matters
revealed by the Surveys), including Monetary Encumbrances and any title defects
that are non-monetary in nature ("Non-Monetary Defects") (provided, however,
that Purchaser shall not object to matters or defects, other than Monetary
Encumbrances, to the extent such matters or defects were specified as exceptions
on any proforma marked leasehold title insurance policies delivered to the
Alterra Lessees in connection with the inception of the Existing Leases, which
matters or defects shall be deemed to be Permitted Title Exceptions hereunder).
Within one (1) day after Seller's receipt of Purchaser's notice with respect to
any Facility, Seller shall give notice to Purchaser either refusing to cure the
applicable Non-Monetary Defects or setting forth Seller's intent to cure such
Non-Monetary Defects and stating in detail how Seller will accomplish same.
Failure of Seller to timely give such notice shall be deemed to be a refusal by
Seller to cure any such Non-Monetary Defects. Upon the later of receipt of
Seller's notice or expiration of the one (1) day period, then Purchaser may, at
any time on or prior to December 30, 1999 with respect to the Tranche A
Facilities or January 25, 2000 with respect to the Tranche B Facilities, by
notice to Seller, (i) elect to terminate Purchaser's obligation to purchase such
Facility pursuant to this Agreement, whereupon the Xxxxxxx Money with respect to
such Facility shall be promptly refunded to Purchaser, this Agreement shall be
null and void with respect to such Facility and neither party shall have any
further rights, duties or obligations hereunder with respect to such Facility
but which termination shall not release or relieve either party hereunder with
respect to the remainder of the Facilities for which no such termination notice
was given or (ii) accept title to such Facility subject to the Non-Monetary
Defects that Seller has not undertaken to cure, in which event such Non-Monetary
Defects, together with all title exceptions and matters appearing on the Title
Commitment with respect to such Facility to which Purchaser did not object, will
be deemed Permitted Title Exceptions hereunder. If Purchaser elects option (ii)
as to any Facility and at the applicable Facility Closing Seller fails to cure
the applicable Non-Monetary Defects in the manner Seller has undertaken to so
cure in its notice to Purchaser to the satisfaction of Purchaser, Purchaser will
again have the options set forth in (i) and (ii) above as its sole and exclusive
remedy; provided, however, in the event Seller was unable to effect such cure
after exercise of reasonable efforts, Seller may by notice extend the Facility
Closing Date for such Facility for an additional ninety (90) days to enable
Seller to attempt to effect such cure, in which event if Seller is unable to
cure Purchaser will once again have the options set forth in (i) and (ii) above
as its sole and exclusive remedy and provided further, however, the Facility
Purchase Price applicable to any Facility for which Seller has so extended shall
be deducted from the $30,000,000.00 aggregate Facility Purchase Prices required
to be consummated by Purchaser by December 30, 1999 pursuant to Paragraph 3.
Seller agrees not to further voluntarily alter or encumber in any way title to
any Facility after the date of this Agreement. In the event that Purchaser fails
to timely notify Seller of title defects as to any Facility, then such failure
to notify Seller shall constitute a waiver of Purchaser's right to object to any
Non-Monetary Defects with respect to any Facility but shall not be a waiver of
Seller's absolute obligation hereunder to cure Monetary Defects, nor a waiver of
Purchaser's right to object to matters that arise subsequent to such date.
Purchaser shall have the right to re-examine and update title to any Facility
and update the applicable Survey through and including the applicable Facility
Closing Date and in the event any such examination or
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update reveals any new matters first arising or appearing of record subsequent
to Purchaser's first examination of title, then (i) if such new matters were
voluntarily imposed by Seller, Seller shall be in default hereunder and the
provisions of Paragraph 17 shall apply or (ii) if such new matters were not
voluntarily imposed by Seller, then Purchaser shall have the right to object to
same and will again have the options set forth in (i) and (ii) above as its sole
and exclusive remedy.
B. Survey Matters. Purchaser may obtain a current as-built plat of
survey ("Survey") of the Land for each Facility. Each Survey shall be prepared
for and certified by a registered land surveyor licensed as such in the state in
which the Facility is located. Purchaser's and Seller's rights and obligations
with regard to title defects revealed by Surveys shall be those indicated in
Paragraph 4.A. above. Purchaser agrees to request that the Title Company and any
surveyors provide copies of all title commitments, title exceptions and surveys
directly to Seller and in the event the Title Company or surveyors fail to do so
Purchaser shall provide same promptly to Seller upon request.
5. PRORATIONS AND CREDITS AT CLOSING.
Inasmuch as the Alterra Lessees are responsible for payments of all
costs and expenses associated with the Facilities pursuant to the Existing
Leases, Seller and Purchaser agree that there shall be no prorations or credits
at the applicable Facility Closings for matters customarily prorated at closings
of improved real property, including without limitation real estate taxes and
assessments, prepaid monthly rent paid by Residents, security deposits or
custodial accounts with respect to Residents, utility expenses or deposits,
service contract payments, personal property taxes, payroll or accrued benefits
or other similar items. Notwithstanding the foregoing, however, in the event
that on the applicable Facility Closing Date, there has been any rent prepaid
under the Existing Leases by the Alterra Lessees, Purchaser shall receive a
credit for such amount against the applicable Facility Purchase Price. In
addition, all Deposits shall be refunded by Seller to Purchaser with respect to
any Facility on its respective Facility Closing Date and all original letters of
credit posted in connection with the Existing Leases related to such Facility
shall be delivered by Seller to Purchaser. With respect to any Additional Rent
(as defined in the Existing Leases), the obligation of the Alterra Lessees to
pay Additional Rent, if any, shall survive the applicable Facility Closing Date
and be determined in accordance with the terms of the Existing Leases.
6. CONFIDENTIALITY.
Purchaser agrees that all nonpublic documents and information provided
to Purchaser by Seller and/or their advisors, affiliates and agents regarding
the Facilities (excluding, however, such information already in possession of
Purchaser, the Alterra Lessees and/or their advisors, affiliates and agents)
(the "Confidential Information") shall remain confidential and neither Purchaser
nor its advisors, affiliates or agents shall disclose the Confidential
Information to any person, unless required by law, other than Purchaser's
advisors, affiliates and agents for the purposes of consummating the
transactions contemplated herein, all of whom shall be bound by this
confidentiality provision. Purchaser
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will be responsible for any breach of the provisions of this Paragraph 6 by any
of its advisors, affiliates or agents that have received the Confidential
Information. In the event that Purchaser or anyone to whom Purchaser has
transmitted such Confidential Information are requested to or become legally
compelled to disclose any of such Confidential Information, Purchaser will
provide Seller with prompt notice so that Seller may seek a protective order or
other appropriate remedy or waive compliance with the provisions of this
Paragraph. In the event that such protective order or other remedy is not
obtained, or Seller waives compliance with the provisions of this Paragraph,
Purchaser will furnish only that portion of the Confidential Information which
is legally required and will exercise reasonable commercial efforts to obtain
reliable assurance that confidential treatment will be accorded such disclosed
Confidential Information. The provisions of this Paragraph 6 shall survive the
Facility Closings or any earlier termination of this Agreement and shall not
reduce any liability of any affiliate of Purchaser that may exist under any
preexisting confidentiality or similar agreement.
7. CONVEYANCES AND DELIVERIES AT EACH FACILITY CLOSING.
A. Deed; Affidavit. At each Facility Closing, Seller shall convey the
Land comprising a part of such Facility, together with any easements appurtenant
thereto and any Improvements thereon, to Purchaser using the form of deed used
in the jurisdiction in which the Facility is located that limits the warranties
of title therein contained to matters arising by, through or under the grantor
thereunder (the "Limited Warranty Deed"), subject only to the Permitted Title
Exceptions and using a legal description based upon the Survey and approved by
Title Company. The Limited Warranty Deed shall be accompanied by a completed and
executed transfer tax affidavit or similar instrument in the prescribed form and
if permissible under applicable law Purchaser agrees to execute same. Seller
shall also execute and deliver an owner's affidavit limited to Seller's
knowledge and relating only to matters arising by, through or under Seller in
the form prescribed by Title Company and reasonably acceptable to Seller to
enable Title Company to endorse over or delete the exceptions from the Title
Policy related to Seller for mechanics', materialmen's and other similar liens,
rights of parties in possession under unrecorded leases (other than the
applicable Residents at a Facility), and the other standard exceptions.
B. Xxxx of Sale. At each Facility Closing, Seller shall also convey
Seller's interest, if any, in the Personal Property comprising a part of such
Facility to Purchaser by Limited Warranty Xxxx of Sale, which Xxxx of Sale shall
contain only such warranties and representations as are necessary to ensure to
Purchaser that Seller's title to the Personal Property, if any, is free and
clear of any encumbrances or interests of others arising by, through or under
Seller. Seller shall also deliver properly endorsed certificates of title to any
motor vehicles to be conveyed pursuant hereto, if any, and releases of any UCC
Financing Statements related to the Facilities.
C. Assignment of Residency Agreements and Leases. At each Facility
Closing, Seller shall quitclaim to Purchaser Seller's interest, if any, in and
to the Residency Agreements. At Purchaser's option, Seller shall either assign
the Existing Leases by a duly
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executed assignment of leases to Purchaser or shall execute a termination
agreement with respect to the Existing Leases and in such event Purchaser shall
be obligated to cause the Alterra Lessees to execute same. Purchaser and Seller
acknowledge that it may be necessary to leave some of the Existing Leases in
effect in order to effect an orderly transition without violation of state
licensure statutes and that as a result thereof it may be necessary for the
licenses to continue to be held in the name of the Alterra Lessees until the
next occurring licensure renewal. In the event that Purchaser elects to accept
an assignment of Existing Leases rather than to terminate same, then Purchaser
shall indemnify Seller with respect to the obligations of the Lessor under the
Existing Leases arising after the applicable Facility Closing Date and Purchaser
shall cause the Alterra Lessees to likewise so indemnify Seller.
D. Assignment of Operating Interests. At each Facility Closing, Seller
shall quitclaim to Purchaser Seller's interest, if any, in the Operating
Interests comprising a part of such Facility.
E. Notices of Conveyance. On or before each Facility Closing Date (or
earlier if Purchaser and Seller shall so agree), Seller and Purchaser shall send
any other written notice and make any necessary filing as may be required under
applicable law with respect to the sale of the Facility or a transfer of
ownership of such Facility.
F. Section 1445 Certificate; Form 8594. At each Facility Closing,
Seller shall also execute and deliver to Purchaser a certificate and affidavit
with respect to Section 1445 of the Internal Revenue Code stating that Seller is
not a foreign person as defined in said Section 1445 and applicable regulations
thereunder. At such Facility Closing, Seller and Purchaser shall execute an
agreement to timely file IRS Form 8594 with the Internal Revenue Service
reflecting the agreed upon allocation of the Facility Purchase Price as provided
in Paragraph 2.B.
G. Closing Statement. At each Facility Closing, Seller and Purchaser
shall execute and deliver a Closing Statement which shall, among other items,
set forth the applicable Facility Purchase Price, all credits against such
Facility Purchase Price, the amounts of all prorations and other adjustments to
such Facility Purchase Price and all disbursements made at such Facility Closing
and which shall recite that the provisions of this Agreement shall survive such
Facility Closing in the manner expressly set forth herein.
H. Reaffirmation of Representations and Warranties. At each Facility
Closing, both Seller and Purchaser shall reaffirm in writing that all
representations and warranties made by each of them, respectively, with respect
to such Facility are true, correct and complete as of such Facility Closing
Date.
I. Release of Monetary Encumbrances; Amendment to Meditrust Documents.
At each Facility Closing, Seller shall cause all Monetary Encumbrances
encumbering such Facility to be paid and satisfied in full and released of
record and Seller and Purchaser and the Alterra Lessees shall execute and
deliver such documents and instruments as necessary or appropriate (i) to cause
such Facilities to be released from all security interests granted in
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connection with the Existing Leases as security therefor and (ii) to modify and
amend all documents and instruments between Seller, Seller's affiliates and
Purchaser and the Alterra Lessees with respect to the remainder of the portfolio
of assisted living facilities leased to the Alterra Lessees by Seller and
Seller's affiliates (the Facilities and the remainder of such portfolio are
hereinafter collectively the "Alterra-Meditrust Pool") to release therefrom as
collateral the Facilities (provided such releases shall expressly exclude any
obligations which by their terms survive termination).
J. Acknowledgement of Survival. At each Facility Closing, Seller, the
applicable Alterra Lessees and Purchaser shall execute and deliver an agreement
acknowledging that certain provisions of the Facility Leases relating to such
Facility and of other documents and instruments executed in connection with the
Alterra-Meditrust Pool survive any termination of the Facility Lease,
notwithstanding the release of such Facility as collateral for the obligations
of the Alterra Lessees and the guarantor with respect to the Alterra-Meditrust
Pool.
K. Other Conveyances and Instruments. At each Facility Closing, Seller
shall also execute and deliver to Purchaser a conveyance or assignment of any
portion of the Facility sold hereunder for which the conveyance or assignment is
not otherwise provided in this Paragraph 7.
8. SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS.
Each entity comprising Seller represents, warrants and covenants to and
with Purchaser that, as to such Seller entity, as applicable, and as to each
Facility shown as owned by each entity on Exhibit B, as follows:
A. Title to Real Property and Personal Property. The Seller entity
identified on Exhibit A for each Facility is the owner of title to the Real
Property and the Improvements comprising a portion of such Facility and is the
holder of the interest of the landlord under the applicable Existing Lease for
such Facility free and clear of all encumbrances arising by, through or under
such Seller entity except for the Permitted Title Exceptions and except for
liens and encumbrances that will be paid by Seller at the applicable Facility
Closing.
B. Existing Leases. The Existing Leases are in full force and effect as
of the execution of this Agreement.
C. [INTENTIONALLY DELETED].
D. No Other Leases. There are no leases or other agreements relating to
use or occupancy of the Facilities arising by, through or under Seller, except
for the Existing Leases.
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E. Service Contracts; Other Contracts. As of the applicable Facility
Closing Date, there will be no Service Contracts or other management, real
estate, leasing, rental commission, service, maintenance, employment, union or
other contracts of any kind or description in existence relating to the
applicable Facility and which arise by, through or under Seller, except for the
Permitted Title Exceptions and the Existing Leases (in the event Purchaser
elects not to terminate the Existing Leases).
F. [INTENTIONALLY DELETED].
G. Litigation and Other Proceedings. To Seller's knowledge there are no
judgments entered or unsatisfied against Seller which have attached or could
attach to the Facilities or title thereto. To Seller's knowledge there is no
litigation, claim or proceeding pending or threatened against or relating to
Seller's ownership or title to any Facility, nor does Seller know of any basis
for any such action. To Seller's knowledge there is no governmental
investigation relative to Seller (i) which relates to any Facility or Seller's
ownership or title to any Facility or (ii) which could have a material adverse
effect on the Facilities, Seller's ownership thereof or Seller's ability to
perform hereunder, nor does Seller know of any basis for any such action. Seller
is not in the hands of a receiver nor has Seller filed for protection under any
bankruptcy or insolvency statute nor has an order for a receivership, stay, or
other similar relief under any bankruptcy or insolvency statute been entered
with respect to Seller.
H. Compliance of Property With Zoning and Other Laws. Seller has not
received any written notification from any governmental or public authority that
any Facility violates any existing fire, health, building, handicapped persons,
environmental, sanitation, use and occupancy or zoning laws or that any work is
required to be done upon or in connection with any Facility or that any
modifications or alterations now or in the future will need to be made to
maintain the licensure category of any Facility. No written notice or warning
from any governmental authority with respect to any failure or alleged failure
of Seller to comply with any law, regulation or order has been received by
Seller, nor to Seller's knowledge is any such notice or warning threatened
except as already disclosed to one or more of the Alterra Lessees.
I. Environmental Matters. Except for matters arising by, through or
under the Alterra Lessees or medical waste or cleaning solvents, Seller has not
used, nor knowingly allowed the use of any Facility for the generating,
handling, treatment, storage, disposal or release of any hazardous substance,
hazardous waste, petroleum or petroleum products, asbestos, lead-based paint,
contaminant, pollutant or other words of similar import (hereinafter
collectively referred to as "Hazardous Substances") referred to or defined as
such under any applicable local, state or federal law or regulation regulating
the discharge of solid, liquid or gaseous waste into the environment or the
placement of structures or materials into any waters (surface or subsurface) or
otherwise regulating or appertaining to matters affecting the environment
(hereinafter collectively referred to as "Environmental Laws"). Seller has
received no notice and there are no claims, actions, suits, proceedings or
investigations known to Seller, pending or threatened, related to Hazardous
Substances with
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respect to the ownership, use, condition, or operation of any of the Facility,
in any court or before or by any federal, state or other governmental or
quasi-governmental agency or authority or private arbitration tribunal except as
previously disclosed to one or more of the Alterra Lessees (hereinafter
collectively referred to as "Environmental Litigation").
J. [INTENTIONALLY DELETED].
K. Pending Condemnation Proceedings. Seller has received no written
notice of, and to Seller's knowledge there is no pending condemnation or eminent
domain proceedings which would affect any Facility, or any part thereof or
access thereto.
L. Disclosure. No statement, warranty or representation by Seller
contains an untrue statement of material fact or omits to state a material fact
necessary in order to make the statements made in light of the circumstances
under which such statements are made not misleading.
M. Authority. Each Seller entity is duly organized or formed, validly
existing and in good standing under the laws of the state of its incorporation
or organization, and each has all necessary power to execute and deliver this
Agreement and perform all its obligations hereunder. Each Seller entity has the
full power and authority to enter into and perform this Agreement and the
execution, delivery and performance of this Agreement by such Seller entity (i)
has been duly and validly authorized by all necessary action on the part of such
Seller entity, (ii) does not conflict with or result in a violation of such
Seller entity's articles of incorporation, bylaws, partnership agreement,
operating agreement or other governing instruments, or any judgment, order or
decree of any court or arbiter in any proceeding to which such Seller entity is
a party, and (iii) does not conflict with or constitute a material breach of, or
constitute a material default under, any contract, agreement or other instrument
by which such Seller entity is bound or to which it is a party. This Agreement
is the valid and legally binding obligation of each Seller entity enforceable in
accordance with its terms.
All of the foregoing representations, warranties and covenants of each
Seller shall be reaffirmed by such Seller in writing at each Facility Closing as
true, correct and complete as of the Facility Closing Date and such
representations, warranties and covenants shall survive the Facility Closing for
the period set forth in Paragraph 18. From and after the date of this Agreement,
Seller will not take any action, or fail to take any action or suffer or permit
any third party (other than Purchaser or its affiliates or those acting on
behalf of Purchaser or its affiliates) to take or fail to take any action, which
would result in a breach of any warranty, representation or covenant contained
in this Paragraph 8 or which would impair or impede Seller's ability to reaffirm
such representations, warranties and covenants as true, correct and complete as
of the Facility Closing Date.
Except for Seller's representations and warranties contained in this
Agreement and in any other documents or instruments executed or delivered in
connection with any Facility Closings (including without limitation any
representations or warranties contained in any modification or amendment of the
documents or instruments with respect to the removal of
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the Facilities from the remainder of the Alterra-Meditrust Pool), Purchaser is
acquiring the Facilities "AS IS" and "WHERE IS", without express or implied
warranty of any kind or nature from Seller or anyone acting by, through or under
Seller. Purchaser specifically acknowledges that affiliates of Purchaser have
been the lessees and operators of the Facilities since the inception of the
Existing Leases (and in some instances, prior thereto) and as a result thereof
Purchaser, through such affiliates, is fully familiar with the Facilities and
the operation thereof.
9. PURCHASER'S REPRESENTATIONS AND WARRANTIES.
Purchaser, as of the date of the execution of this Agreement by
Purchaser, represents and warrants to Seller as follows:
A. Organization, Power and Authority. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has all necessary power to execute and deliver this Agreement and
perform all its obligations hereunder. Purchaser has the full power and
authority to enter into and perform this Agreement and the execution, delivery
and performance of this Agreement by Purchaser (i) has been duly and validly
authorized by all necessary action on the part of Purchaser, (ii) does not
conflict with or result in a violation of Purchaser's Articles of Incorporation
or Bylaws, each as amended, or any judgment, order or decree of any court or
arbiter in any proceeding to which Purchaser is a party, and (iii) does not
conflict with or constitute a material breach of, or constitute a material
default under, any contract, agreement or other instrument by which Purchaser is
bound or to which it is a party. This Agreement is the valid and legally binding
obligation of Purchaser enforceable in accordance with its terms.
B. No Bankruptcy. Purchaser is not in the hands of a receiver nor has
Purchaser filed for protection under any bankruptcy or insolvency statute nor
has an order for a receivership, stay or other similar relief under any
bankruptcy or insolvency statute been entered with respect to Purchaser.
C. Purchaser's Investigation. Except with respect to the
representations and warranties of Seller set forth in this Agreement or in any
other documents or instruments executed or delivered in connection with any
Facility Closings (including without limitation any representations or
warranties contained in any modification or amendment of the documents or
instruments with respect to the removal of the Facilities from the remainder of
the Alterra-Meditrust Pool), Purchaser has and will makes its own inquiry and
investigation into, and based thereon will form an independent judgment
concerning, the Facilities and the operation thereof and, except with respect to
the aforedescribed representations and warranties Purchaser will not rely on
Seller for any facts or information with respect thereto.
X. Xxxx-Xxxxx-Xxxxxx. The value of assets being acquired in connection
with the Facilities, collectively, that are not exempt from the requirements of
the Xxxx-Xxxxx-Xxxxxx Act pursuant to 16 C.F.R. ss. 802.2 does not equal or
exceed $15,000,000 in the aggregate.
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All of the foregoing representations, warranties and covenants of
Purchaser shall be reaffirmed by Purchaser in writing at each Facility Closing
as true, correct and complete as of the Facility Closing Date and such
representations, warranties and covenants shall survive the Facility Closing for
the period set forth in Paragraph 18. From and after the date of this Agreement,
Purchaser will not take any action, or fail to take any action or suffer or
permit any third party (other than Seller or its affiliates or those acting on
behalf of Seller or its affiliates) to take or fail to take any action, which
would result in a breach of any warranty, representation or covenant contained
in this Paragraph 9 or which would impair or impede Purchaser's ability to
reaffirm such representations, warranties and covenants as true, correct and
complete as of the Facility Closing Date.
10. PRE-CLOSING COVENANTS.
Purchaser and Seller covenant and agree that between the date hereof
and the last to occur of the Facility Closing Dates:
A. [INTENTIONALLY DELETED].
B. New Leases. After the date of this Agreement, Seller shall not enter
into any new leases with respect to the Facilities without in each case the
prior written consent of Purchaser.
C. New Service Contracts. After the date of this Agreement, Seller
shall not enter into any new Service Contracts with respect to the Facilities.
D. Notice of Revision of Representations Due to Discovery of New Facts.
Seller and Purchaser shall notify the other promptly if Seller or Purchaser
become aware of any fact, transaction, event or occurrence which could make any
of the warranties, representations and covenants of Seller or Purchaser under
this Agreement not true with the same force and effect as if made on or as of
the date hereof.
E. Personal Property Inventory. Seller shall not remove any of the
Personal Property from any Facility during the term of this Agreement.
F. Transfer of Permits. To the extent required under applicable law,
Seller shall execute all applications and instruments required in connection
with the transfer of Permits to the extent transferable, in order to transfer
the benefits of each such Permits to Purchaser and, if requested by Purchaser,
to reasonably cooperate (at Purchaser's expense) with Purchaser's efforts to
have all Permits required for the operation of the Facility issued to and in the
name of Purchaser on or prior to the applicable Facility Closing Date, except
that Seller makes no representation or warranty with respect to the necessity
for any approvals, consents or filings referred to in this subparagraph F.
G. Notices and Consents At Purchaser's expense Purchaser and Seller
will (and will cause any of its affiliates to) give any notices to, make any
filings with, and use
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commercially reasonable efforts to obtain any authorizations, consents and
approvals of governments and governmental agencies required in connection with
consummating the sale of the Facilities pursuant hereto.
11. PURCHASER'S INSPECTION OF PROPERTY.
A. Access. Subject to the rights of Residents and subject to the
rights of the Alterra Lessees, Purchaser shall, at all reasonable times prior to
the applicable Facility Closing Date, have the privilege of visiting and
inspecting each Facility with its agents, representatives and contractually
retained independent contractors as needed to inspect, examine, test, appraise
and survey such Facility, including, but not limited to, investigations of the
zoning status and physical status thereof and verification of all information
made or to be made available to Purchaser with respect to such Facility. In
addition, Purchaser shall have the right to obtain such letters, certificates or
statements from appropriate governmental officials or other experts concerning
zoning and other matters related to the Facilities. This privilege shall include
the right to make surveys, examinations, appraisals and other tests to obtain
any relevant information necessary to determine subsurface and topographic
conditions, including, but not limited to, Hazardous Substances studies, soil
tests, asbestos analysis and structural review, all of which tests, studies and
reviews shall be performed at Purchaser's sole cost and expense. In addition,
Purchaser shall have the right to inspect all other matters required to be
delivered by Seller to Purchaser hereunder. In consideration of Purchaser's
right to inspect the Facilities as described in this Xxxxxxxxx 00.X, Xxxxxxxxx
shall, and does hereby agree to repair any damage to any Facility resulting
therefrom and to indemnify, defend and hold Seller harmless from any losses,
costs or expenses (including reasonable attorneys fees) arising out of the
negligent exercise of such privileges by Purchaser (including any rights or
claims of materialmen or mechanics to liens on the Facilities, but excepting
acts resulting from the gross negligence or willful conduct of Seller or
Seller's agents, principals, employees, representatives, affiliates or others
whose presence is suffered or permitted by Seller other than Residents or the
Alterra Lessees), which indemnity, defense and hold harmless agreement shall
survive any termination of this Agreement.
B. Termination Election. In the event that any of Purchaser's
inspections, examinations, tests or surveys of any Facility reveal any condition
or fact (or raises substantial uncertainty with respect to the existence of any
such condition or fact) which, results in Purchaser's determination that the
Facilities or any one of them, are unsuitable for Purchaser's purposes in
Purchaser's sole and absolute discretion, then Purchaser shall give notice to
Seller thereof on or before (i) December 28, 1999 with respect to the Tranche A
Facilities and (ii) January 25, 2000 with respect to the Tranche B Facilities
(the "Review Period") electing to terminate this Agreement with respect to such
Facility, whereupon such Facility or Facilities shall be deemed to be deleted
from the Facilities to be sold pursuant hereto, this Agreement shall be
terminated as to those (and only those) Facilities and Purchaser and Seller
shall have no further rights, duties or obligations hereunder with respect to
such Facilities. Failure of Purchaser to give notice of a termination election
pursuant to this Paragraph 11.B. prior to the expiration of the Review Period
shall constitute a waiver of
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Purchaser's right to terminate this Agreement with respect to any Facilities not
so terminated pursuant to this Paragraph 11.B.
12. CONDITIONS TO EACH FACILITY CLOSING.
A. [INTENTIONALLY DELETED].
B. Conditions to Purchaser's Obligation to Close. The obligation
of Purchaser to purchase each Facility hereunder is subject to the following
additional conditions, any or all of which may be waived by Purchaser to the
extent permitted by applicable law:
(i) Accuracy of Representations (and the facts recited
therein); No Default by Seller. All the warranties, representations and
covenants of Seller contained in this Agreement with respect to such
Facility or the Seller entities owning such Facility shall be true in
all material respects on the applicable Facility Closing Date with the
same effect as if they had been made on such Facility Closing Date and
shall be reaffirmed by Seller in writing at the Facility Closing, and
Seller shall have performed all covenants and obligations to have been
performed and satisfied by Seller with respect to such Facility prior
to the Facility Closing Date.
(ii) Licensing. Purchaser shall have received all necessary
permits, licenses, approvals, accreditations and certificates from all
applicable federal, state and local governmental authorities or
agencies or others having jurisdiction in order to (a) permit Purchaser
or its designee to operate the Facility and (b) permit the transfer of
the Facility from Seller to Purchaser except for such permits,
licenses, approvals, accreditations or certificates which, if not
received by Purchaser, would not materially and adversely affect
Purchaser's ability to operate the Facility.
(iii) Financing. Purchaser shall have obtained financing on
commercially reasonable terms to enable Purchaser to finance
Purchaser's acquisition of the Facilities, which contingency shall not
be deemed satisfied until the lender shall be satisfied with respect to
such lender's due diligence inquiries regarding the Facilities.
Purchaser agrees that the foregoing condition precedent shall be deemed
to be satisfied in the event that Purchaser has obtained financing at
an initial interest rate not to exceed nine percent (9%) per annum in
an initial principal amount of not less than Fifty-Five Million and
No/100 Dollars ($55,000,000.00), which loan will be secured by first
priority mortgages or deeds of trust with respect to the Facilities.
Purchaser shall apply for such loan within ten (10) days from and after
the date hereof and use Purchaser's reasonable commercial efforts to
obtain such loan.
(iv) Termination Election. Purchaser shall not have given
notice to Seller of Purchaser's election to terminate this Agreement
with respect to such Facility pursuant to any express right to do so
hereunder.
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C. Conditions to Seller's Obligation to Close. The obligation of Seller
to sell each Facility hereunder is subject to the following additional
condition, which may be waived by Seller to the extent permitted by applicable
law:
(i) Accuracy of Representations (and facts recited herein); No
Default by Purchaser. All of the warranties, representations and
covenants of Purchaser contained in this Agreement shall be true in all
material respects on the applicable Facility Closing Date with the same
effect as if they had been made on such Facility Closing Date and shall
be reaffirmed by Purchaser in writing at the Facility Closing, and
Purchaser shall have performed all covenants and obligations to have
been performed and satisfied by Purchaser prior to the Facility Closing
Date.
D. Result of Failure to Satisfy Conditions. In the event that any
condition hereunder shall not be satisfied on or before December 30, 1999 with
respect to the Tranche A Facilities or January 30, 2000 with respect to the
Tranche B Facilities, then Purchaser (if such failed condition is set forth in
subparagraph B above) or Seller (if such failed condition is set forth in
subparagraph C above) may upon notice to the other party terminate this
Agreement with respect to any Facility for which such condition was not
satisfied, whereupon this Agreement shall be null and void with respect to such
Facility or Facilities, all Xxxxxxx Money allocable to such Facility or
Facilities shall be refunded immediately to Purchaser and neither party shall
have any further rights, duties or obligations hereunder with respect to such
Facility or Facilities but which termination shall not release or relieve either
party hereunder with respect to the remainder of the Facilities for which no
such termination notice was given.
13. STANDSTILL.
From and after the date hereof, and provided that the Tranche A Closing
and the Tranche B Closing are consummated on or before the dates and as herein
provided, Seller agrees that Seller will not offer, solicit or obtain any offer
for the Facilities or for the additional Facilities identified on Exhibit "F"
(the "Additional Facilities") from any person or entity other than Purchaser,
nor shall Seller enter into negotiations with any person or entity with respect
to the Facilities or the Additional Facilities other than Purchaser for the
period through and including March 31, 2000. Notwithstanding the foregoing, the
obligations of Seller pursuant to this Paragraph 13 shall remain in full force
and effect through March 31, 2000 in the even that the Tranche A or the Tranche
B Closings do not occur as a result of the default of the Sellers, or any of
them, hereunder. The provisions of this Paragraph 13 shall survive any Closing
hereunder.
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14. NOTICES.
All notices, consents, approvals and other communications which may be
or are required to be given by either Seller or Purchaser under this Agreement
shall be properly given if made in writing and sent by (a) hand delivery, or (b)
certified mail, return receipt requested, or (c) nationally recognized overnight
delivery service for next business day delivery (such as Express Mail, Federal
Express or Airborne Express), or (d) facsimile or telecopier, provided a
confirming copy thereof is thereafter also sent via the methods described in
(a)-(c), above, with all postage and delivery charges paid by the sender and
addressed to Purchaser or Seller, as applicable, as follows. Such notices
delivered (a) by hand shall be deemed received upon actual delivery, (b) by
overnight delivery service shall be deemed received on the business day
following the date of deposit with such overnight service, (c) by mail shall be
deemed received upon the earlier of actual receipt or two (2) business days
after mailing, and (d) by facsimile or telecopier shall be deemed received upon
the date the sender receives verbal or electronic confirmation of such
transmission, without regard to when the confirming copy is sent or delivered.
Said notice addresses are as follows:
IF TO SELLER:
c/o Meditrust Corporation
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxxx, Xx. V. P. & Gen. Counsel
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Xxxxxxxx, Xxxxxxx & Xxxxxxx, P.C.
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
IF TO PURCHASER:
Alterra Healthcare Corporation
000 X. Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
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with a copy to:
Xxxxxx & Xxxxxx LLP
2700 International Tower
Peachtree Center
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
IF TO TITLE COMPANY:
Chicago Title Insurance Company
0000-X Xxxxxxxxx Xxxxxxxx Xx.
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxxxxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Either party may change its address for notices hereunder upon not less than
five (5) days notice to the other, and either party's counsel may give notice on
behalf of their respective clients. Inability to give notices due to incorrect
address or due to failure of a party to give notice of a change of address,
refusal to accept notices, and inability to transmit notices due to mechanical
or other difficulties on the recipient's end (including without limitation a
malfunctioning facsimile machine) shall be deemed to be effective notice
hereunder.
15. CASUALTY AND CONDEMNATION.
A. Casualty. In the event that prior to the applicable Facility Closing
Date any of the Improvements of the applicable Facility are damaged or destroyed
by fire or other casualty to any extent then Purchaser shall have the right to
elect not to purchase such Facility so damaged or destroyed (a "Paragraph 15.A.
Election") by written notice to Seller within ten (10) days after such fire or
other casualty, and thereafter the Xxxxxxx Money applicable to such Facility
shall be immediately paid over to Purchaser and neither party hereto shall have
any further rights, obligations or liabilities hereunder with respect to such
Facility except pursuant to the Existing Leases therefor and to the extent that
any right, obligation or liability set forth herein expressly survives
termination of this Agreement. In the event that Purchaser does not make a
Section 15.A. Election with respect to a Facility, Purchaser shall be obligated
to close the purchase and sale contemplated by this Agreement as scheduled
without adjustment of the applicable Facility Purchase Price and Seller shall
assign to Purchaser at such Facility Closing all of Seller's interests in any
insurance proceeds payable under any insurance policies on account of such
damage or destruction or pay to Purchaser all such insurance proceeds previously
paid, and any obligation to repair or restore
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shall be governed by the terms of the applicable Existing Lease. The applicable
Facility Closing Date shall be extended, if necessary, for ten (10) days to
permit Purchaser to make Purchaser's election as set forth above.
B. Condemnation. In the event that prior to any Facility Closing Date
there shall be instituted against any portion of the applicable Facility any
proceeding in condemnation, eminent domain or any written request for a
conveyance in lieu thereof, or limiting or restricting access thereto or should
Seller receive notice that such proceedings are threatened or have been
commenced against such Facility (hereinafter collectively referred to as
"Condemnation Proceedings"), then if Seller shall have notice thereof Seller
shall give Purchaser immediate notice thereof and Purchaser shall have the right
to elect not to purchase such Facility (a "Paragraph 15.B. Election") by written
notice to Seller within ten (10) days after Purchaser obtains knowledge (through
Seller or otherwise) of such Condemnation Proceedings, and thereafter the
Xxxxxxx Money applicable to such Facility shall be immediately paid over to
Purchaser and neither party hereto shall have any further rights, obligations or
liabilities hereunder with respect to such Facility except pursuant to the
Existing Lease and except to the extent that any right, obligation or liability
set forth herein expressly survives termination of this Agreement. In the event
that Purchaser shall not make a Section 15.B. Election with respect to an
Facility, Purchaser shall be obligated to close the purchase and sale
contemplated hereby less the portion of such Facility so taken or subject to
said Condemnation Proceedings without adjustment of the applicable Facility
Purchase Price and Seller shall assign or pay to Purchaser at the applicable
Facility Closing all of Seller's right, title and interest in any award payable
on account of such Condemnation Proceedings or pay to Purchaser all such awards
previously paid and any obligation to repair or restore shall be governed by the
terms of the applicable Existing Lease. The Closing Date shall be extended, if
necessary, for ten (10) days to permit Purchaser to make Purchaser's election as
set forth above.
16. BROKERS.
Each party hereto represents and warrants to the other that it has not
employed any broker, finder or other person or entity who might, by reason
thereof, have any claim for payment of any brokerage commission, finder's fee or
other similar compensation from any other party hereto. Seller and Purchaser
further represent and warrant that they each shall be responsible for payment of
any broker or finder employed (expressly or impliedly) by them, respectively.
Seller and Purchaser shall and do hereby indemnify and defend the other against
and hold the other harmless of and from all claims, demands and liabilities for
any breach of the foregoing representations and warranties, including without
limitation, for any commission, fee or other compensation payable to or claimed
by any broker or finder employed (express or implied) by it or with whom it made
an agreement (express or implied) to pay a broker's commission, a finder's fee
or other compensation. The provisions of this Paragraph 16 shall survive any
closings hereunder.
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17. DEFAULT.
A. By Purchaser. In the event that Purchaser defaults in the observance
or performance of its covenants and obligations hereunder after written notice
by Seller to Purchaser of such default and Purchaser's failure to cure such
default within two (2) Business Days after receipt of such notice, Seller shall
be entitled to terminate this Agreement with respect to any Facility for which a
Facility Closing has not yet occurred and to which such default relates by
written notice to Purchaser of such termination and shall also be entitled, as
its sole and exclusive remedy hereunder, to receive payment from Escrow Agent of
any Xxxxxxx Money relating to such Facility then being held by Escrow Agent and
not previously disbursed at any prior Facility Closing hereof as full liquidated
damages for such default of Purchaser. The parties hereby acknowledge the
difficulty of ascertaining the actual damages in the event of such a default,
that it is impossible more precisely to estimate the damages to be suffered by
Seller upon Purchaser's default and that the aforesaid payments are intended not
as a penalty, but as full liquidated damages and that such amounts constitutes a
good faith estimate of the potential damages arising therefrom. Seller's right
to so terminate this Agreement and to receive aforesaid payment as full
liquidated damages is Seller's sole and exclusive remedy in the event of default
hereunder by Purchaser, and Seller hereby waives, relinquishes, releases and
covenants not to pursue any and all other rights and remedies, including, but
not limited to (i) any right to xxx Purchaser for specific performance of this
Agreement, (ii) any right to xxx Purchaser for damages or to prove that Seller's
actual damages exceed the amounts agreed upon herein as full liquidated damages,
and (iii) any other right or remedy which Seller may otherwise have against
Purchaser, either hereunder, at law, in equity or otherwise.
B. By Seller. In the event that Seller defaults in the observance or
performance of its covenants and obligations hereunder after written notice by
Purchaser to Seller of such default and Seller's failure to cure such default
within two (2) Business Days after receipt of such notice, Purchaser shall be
entitled to pursue any and all rights or remedies available at law, in equity or
otherwise, including without limitation an action for specific performance or an
action for damages resulting from such breach, including without limitation an
action to recover all costs and expenses incurred by Purchaser in pursuing such
damages, including attorneys' fees and expenses; provided, however, an action
for damages shall be limited to actual damages and shall not include special,
consequential or punitive or other damages.
C. Lease Obligations Not Affected. It is Purchaser's and Seller's intent that
their respective obligations pursuant to this Agreement be separate and distinct
from the obligations of Seller and the obligations of Purchaser and Purchaser's
respective affiliates with respect to the Existing Leases and with respect to
the remainder of the Alterra-Meditrust Pool. Accordingly the parties acknowledge
that any defaults hereunder shall be subject to remedy only pursuant the
provisions of this Paragraph 17 and there shall be no rights of offset or cross
defaults under or pursuant to the Existing Leases or any other documents or
instruments executed in connection with the Existing Leases or the remainder of
Alterra-Meditrust Pool, nor shall anything contained herein reduce, eliminate or
impair the obligations of the Sellers or the Alterra Lessees under the Existing
Leases or the obligations
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of the Sellers or the Alterra Lessees or Purchaser under any guaranty or other
document or instrument executed in connection with the Existing Leases or the
remainder of the Alterra-Meditrust Pool.
18. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
A. Survival of Representations and Warranties. The provisions of
Paragraph 20 and 21, the other paragraphs of this Agreement that expressly
provide they will survive and all representations and warranties contained
herein and in any certificate delivered at any Facility Closing shall be deemed
to have been relied upon notwithstanding any investigation heretofore or
hereafter made or omitted by any party hereto and shall survive each Facility
Closing for a period of one (1) year after the date of the respective Facility
Closing hereunder.
19. GENERAL PROVISIONS.
A. Agreement Binding; Assignment. This Agreement shall be binding upon
each party hereto and such party's successors and assigns and shall inure to the
benefit of each party hereto and such party's successors and assigns. As used
herein, all references to "Seller" shall mean individually each entity
constituting a Seller hereunder and collectively all such entities, all of which
shall be jointly and severally liable for the performance of all obligations of
Seller hereunder. Any reference herein to any "Seller entity" (or words of
similar import) are not intended to be in limitation of the foregoing definition
but are included for clarity purposes only. Purchaser may assign this Agreement
and Purchaser's rights hereunder without the prior written consent of Seller to
any person or entity.
B. Entire Agreement. This Agreement and all the exhibits referenced
herein and annexed hereto contain the entire agreement of the parties hereto
with respect to the matters contained herein, and no prior agreement or
understanding pertaining to any of the matters connected with this transaction
shall be effective for any purpose. Except as may be otherwise provided herein,
the agreements embodied herein may not be amended except by an agreement in
writing signed by the parties hereto.
C. Execution Necessary. This Agreement shall not be binding upon Seller
or Purchaser until fully executed and delivered by representatives of Seller or
Purchaser, as the case may be, and no action taken by Seller's or Purchaser's
representatives shall be deemed an acceptance of this Agreement until this
Agreement has been so executed by Seller or Purchaser, as the case may be, and
delivered to the other party hereto.
D. Time is of the Essence. Time is of the essence of the transaction
contemplated by this Agreement.
E. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
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F. Interpretation; Date of Agreement. The titles, captions and
Paragraph headings are inserted for convenience only and are in no way intended
to interpret, define, limit or expand the scope or content of this Agreement or
any provision hereof. If any party to this Agreement is made up of more than one
person or entity, then all such persons and entities shall be jointly and
severally liable hereunder, even though the defined term for such party is used
in the singular in this Agreement and in each instance in which a defined term
for such party is used in the singular it shall mean, collectively, all persons
and entities, jointly and severally, and each person or entity constituting a
portion thereof, severably. If any time period under this Agreement ends on a
day other than a Business Day (as hereinafter defined), then the time period
shall be extended until the next business day. The term "Business Day" shall
mean Monday through Friday excluding holidays recognized by the state government
of the States of Massachusetts and Wisconsin. All references in this Agreement
to "the date of this Agreement" shall be deemed to refer to the date set forth
in the first Paragraph hereof, which date evidences the effective date of the
agreement of the parties as to the terms and conditions set forth herein,
regardless of the date when this Agreement was actually executed by both
parties. All references in this Agreement to the words "herein", "hereunder",
"hereof" or words of similar import shall be deemed to refer to the entirety of
this Agreement unless the reference by its terms specifies only a specific
portion of this Agreement. Wherever used in this Agreement the phrase "by,
through or under Seller" or "by, through or under grantor" shall specifically
exclude any actions or omissions by Purchaser and/or the Alterra Lessees.
G. Waiver. Purchaser or Seller, as the case may be, reserves the right
to waive, in whole or in part, any provision hereof which is for the benefit of
the party so waiving, including without limitation any condition precedent under
Paragraph 12 hereof.
H. Facsimile Signature; Counterparts. This Agreement may be executed by
facsimile signature and in separate counterparts, each of which shall be deemed
an original and all of which, taken as a whole, shall be deemed to be one (1)
original. This Agreement shall be deemed fully executed when each party whose
signature is required has signed at least one (1) counterpart even though no one
(1) counterpart contains the signatures of all of the parties to this Agreement.
I. Non-Waiver. Unless otherwise expressly provided herein, no waiver by
Seller or Purchaser of any provision hereof shall be deemed to have been made
unless expressed in writing and signed by such party. No delay or omission in
the exercise of any right or remedy accruing to Seller or Purchaser upon any
breach under this Agreement shall impair such right or remedy or be construed as
a waiver of any such breach theretofore or thereafter occurring. The waiver by
Seller or Purchaser of any breach of any term, covenant or condition herein
stated shall not be deemed to be a waiver of any other breach, or of a
subsequent breach of the same or any other term, covenant or condition herein
contained.
J. Rights Cumulative. All rights, powers, options or remedies afforded
to Seller or Purchaser either hereunder or by law shall be cumulative and not
alternative, unless expressly provided to the contrary herein, and the exercise
of one right, power, option or
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remedy shall not bar other rights, powers, options or remedies allowed herein or
by law, unless expressly provided to the contrary herein.
K. Exhibits. The exhibits referred to in and attached to this Agreement
are incorporated herein in full by reference.
L. Attorneys' Fees. If there is any legal action, arbitration or
proceeding between Seller and Purchaser arising from or based on this Agreement
or the interpretation or enforcement of any provisions hereof, then the
unsuccessful party to such action, arbitration or proceeding shall pay to the
prevailing party all reasonable costs and expenses, including reasonable
attorneys' fees, incurred by such prevailing party in such action, arbitration
or proceeding and in any appeal in connection therewith. If such prevailing
party recovers a judgment in any such action, arbitration, proceeding or appeal,
then such costs, expenses and attorneys' fees shall be included in and as a part
of such judgment.
20. WAIVER OF PRIOR POST-CLOSING OBLIGATIONS; DISBURSEMENT OF POST-CLOSING
FUNDS.
Purchaser and Seller acknowledge that there are several open
post-closing obligations that exist with respect to the following facilities
within the Alterra-Meditrust Pool: Clare Bridge of Charleston, South Carolina,
Clare Bridge of Charlotte, North Carolina, Clare Bridge of Columbia, South
Carolina, Wynnwood of Charlotte, North Carolina, Wynnwood of Xxxxxxxxxx, Xxxxx
Xxxxxxxx, Xxxxxxxx xx Xxxxxxx, Xxxxxxxx (the "Prior Post-Closing Obligations").
Purchaser and Seller further acknowledge that Seller has been holding the sum of
approximately Three Million Eight Hundred Thousand and No/100 Dollars
($3,800,000.00) (the "Post-Closing Funds"), which represents approximately
$3,500,000 in principal and the remainder of which constitutes accrued interest
to date, with respect to the Prior Post-Closing Obligations in an interest
bearing account. With respect to the Post-Closing Funds and the Prior
Post-Closing Obligations, Seller, on its own behalf and on behalf of any
additional affiliates of Seller who constitute the remaining landlords, lessors
or holders of any "Encumbrances", including without limitation any "Fee
Mortgagees" (as such terms are defined in the various facility lease agreements
that exist with respect to the remainder of the Alterra-Meditrust Pool) holding
any interest in the facilities to which the Prior Post-Closing Obligations apply
(Seller and all such affiliates being hereinafter collectively called the
"Waiving Parties") agree to comply with the provisions of this Paragraph 20. The
Waiving Parties hereby agree that provided that the Waiving Parties receive the
certificates of occupancy for the facilities identified above, simultaneously
with the consummation of the Tranche A Closing the Waiving Parties will
collectively (i) waive any further duty or obligation of the Alterra Lessees,
Purchaser and any affiliate thereof to cure or comply with any of the Prior
Post-Closing Obligations and (ii) release the Post-Closing Funds to Purchaser
simultaneously with the consummation of the Tranche A Closing.
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21. MODIFICATION OF REMAINDER OF ALTERRA-MEDITRUST POOL DOCUMENTS.
Simultaneously with the Tranche A Closing hereunder, Seller, the Alterra
Lessees and any applicable Waiving Parties shall execute and enter into
amendments to the facility lease agreements and related documents (including
without limitation in the Agreement Regarding Related Lease Transaction, as
amended) in effect for the entire remainder of the Alterra-Meditrust Pool to
reduce the Rent Coverage Ratio so that the applicable ratio that must be
satisfied as to the entire remaining Alterra-Meditrust Pool (excluding any
Facilities previously conveyed to Purchaser hereunder or to any affiliate of
Purchaser prior hereof) shall be as follows on the following applicable dates:
As of 12/31/00 - 1.0
As of 12/31/01 - 1.1
As of 12/31/02 - 1.2
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IN WITNESS WHEREOF, the undersigned have caused their duly authorized
representatives to execute and deliver this Agreement as of the day and year
first above written.
SELLER:
MEDITRUST ACQUISITION
COMPANY LLC, a Delaware limited
liability company
By: s/s Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Its: Senior Vice President
NEW MEDITRUST COMPANY LLC, a
Delaware limited liability company
By: s/s Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Its: Senior Vice President
T and F PROPERTIES, LP, a Delaware
limited partnership
By: s/s Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Its: Senior Vice President
PURCHASER:
ALTERRA HEALTHCARE
CORPORATION, a Delaware corporation
By: /s/ Xxxx X. Xxxxxxxxx
---------------------
Name: Xxxx X. Xxxxxxxxx
Its: Senior Vice President
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EXHIBIT A List of Facilities.
EXHIBIT B Existing leases, facility names and dates and deposits.
EXHIBIT C Legal Descriptions (labeled by Facility name).
EXHIBIT D Service Contracts - NONE.
EXHIBIT E Purchase Price and Xxxxxxx Money, allocated by Facility.
EXHIBIT F Additional Facilities
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